|Criminal Justice And Police Bill - continued||House of Lords|
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Clause 57: Property seized by constables etc
167. This clause is referred to in clauses 54, 55 and 56 and sets out certain circumstances in which seized property may be retained. It mirrors the power given to a constable under section 19 of PACE which arises independently of a power of search and gives a constable the power to seize evidence of an offence or property obtained in consequence of the commission of an offence if it is necessary to do so to stop it being lost or destroyed etc. Clause 57 ensures that where a constable has been involved in the seizure of material under clause 51 or 52 it is possible to retain evidence of any offence or property obtained in consequence of the commission of an offence if it is necessary to do so to stop it being lost or destroyed etc, even if this is not material which was being searched for.
Clause 58: Retention of seized items
168. The provisions listed in Subsection (1) of this clause set out when property obtained under these powers may be retained. Subsections (2) and (3) of this clause prevent the retention of property which could not be retained under these provisions if it was seized under the new powers on reliance on one of those powers. Subsection (4) ensures that the listed provisions cannot justify the retention of anything which has to be returned under Part III.
Clause 59: Person to whom seized property is to be returned
169. This clause sets out for the purposes of the Bill to whom property which is obliged to be returned under Part III should be returned. This is normally the person from whom it is seized unless the police or others consider someone else has a better claim to it. Subsections (4) and (5) define the occupier of a premises as being the person from whom property is seized when it is seized from a premises.
Clause 60: Application to appropriate judicial authority
170. This gives anyone with a relevant interest in the seized property the right to apply to the appropriate judicial authority (as defined in clause 65) for its return. It is hoped this will provide a quick and easy mechanism for challenging both the use of the new powers and, in certain circumstances, the exercise of existing powers. Subsection (3) sets out the grounds on which an application for the return of the property can be made. On such an application the Court can order the return of material or, amongst other things, order that it be examined, for example, by an independent third party. Subsections (5)(b), (6) and (7) enable the police or other body in possession of the property to make an application to keep any material which they would otherwise be obliged to return if it would immediately become appropriate to issue a warrant enabling them to seize that material or to demand its production in the circumstances set out in subsection (7)(b). This means, for example, that the police will not have to return material which might be of value to them and then have to immediately obtain a warrant to seize it back. Subsection (8) means that the Court can also authorise the retention of not just what the police or others could seize under a warrant but also any material which is inextricably linked to it.
Clause 61: Cases where duty to secure arises
171. In certain circumstances an application under clause 60 will mean that the police or others will have to secure the material seized pending the hearing of that application. This clause sets out the circumstances in which a duty to secure material seized arises. Whilst it can only arise following the seizure of material under clause 51 or 52, there is no duty to secure simply where it is alleged that the police or others have possession of irrelevant material. Indeed the whole point of the new powers is that the police can seize a bulk of material in order to separate out the relevant from the irrelevant. The circumstances where the duty to secure arises are where an application under clause 60 is made and at least one of the conditions set out in subsections (2) and (3) is satisfied. In particular the duty to secure will arise whenever it is claimed that the material seized includes legally privileged material which should be returned. This means that the person from whom the material is seized can, by making such an application, prevent the police or others looking at any material seized under clauses 51 or 52 pending the hearing before the judge. This gives further protection to legally privileged material. Similar protection is given to special procedure material and excluded material where the legislation containing the underlying power of seizure itself protects those categories of material.
Clause 62: Duty to secure
172. This clause sets out the duty to secure which arises by virtue of clause 61. The duty ensures that the person who has possession of the seized property does not, for example, examine or copy it other than with consent of the applicant or in accordance with the directions of the Court. Subsection (3) provides that the duty to secure does not prevent the giving of a notice under section 49 of the Regulation of Investigatory Powers Act 2000 requiring the disclosure of material protected by encryption.
Clause 63: Use of inextricably linked property
173. This clause provides that inextricably linked property should not be examined or copied or used for any purpose other than for facilitating the use in any investigation or proceedings of property to which it is inextricably linked. For example, the Serious Fraud Office may have seized a computer hard drive under clause 51 because it contains an undated document they consider is evidence in a fraud prosecution. By virtue of clause 54(3)(c) they may retain the whole hard drive if it is required to prove the date the document was created or amended. Clause 63 ensures that whilst there will be other material on the hard drive, that material and the drive itself can only be used to facilitate the use in proceedings of the undated document. Subsections (6), (7) and (8) define for the purposes of the clause what property is inextricably linked.
Clause 64: Copies
174. This clause provides that almost all of Part III shall apply to copies as it does to originals. Accordingly the powers in clauses 51 and 52 and the protections in clauses 55, 56 and 60 apply to copies of material taken under the powers listed in Schedule 2. The powers listed in subsection (3) are powers given to the police and others to obtain production of hard copies of material stored in electronic form. Subsection (1)(c) provides that the protections in Part III apply to material obtained under those powers too.
Clause 65: Meaning of "appropriate judicial authority"
175. This clause provides a definition for "appropriate judicial authority" to whom applications under clause 60 can be made. In most cases it will be a Judge of the Crown Court, but where the power being challenged is the Companies Act 1985 or the Competition Act 1998, or clause 51 or 52 exercised in reliance on those powers, the "appropriate judicial authority" is the High Court.
Clause 66: Meaning of "legal privilege"
176. This clause provides a definition of "legal privilege" for Part III which is based, in part, on the meaning of "legal privilege" in the relevant power listed in Schedule 2 so that the meaning varies slightly according to which of those powers is being exercised.
Clause 67: Interpretation of Part III
177. Subsections (2) and (3) provide a definition of something for which a person making the seizure had power to search which is used, for example, to determine what can be retained under clause 54. Subsection (4) provides that the powers to inspect listed are treated as powers of search for the purposes of Part III. Subsection (5) provides that the powers to take possession listed are treated as powers to seize for the purposes of Part III.
Clause 68: Application to customs officers
178. This clause provides that Part III applies to customs officers.
Clause 69: Application to Scotland
179. This clause provides that the powers in Schedule 2 shall not have effect as including powers exercised by constables in Scotland. Accordingly, other than when exercising the powers set out in the enactments listed in subsection (2), constables in Scotland will not be able to exercise the powers in clauses 51 and 52. The enactments set out in subsection (2) are all ones where constables exercise powers on behalf of other bodies such as the Financial Services Authority.
Clause 70: Application to powers designated by order
180. This clause provides a power enabling the Secretary of State to add additional powers of seizure to Schedule 2 and to make appropriate consequential amendments to Part III and the enactment so added.
Clause 71:Consequential applications and amendments of enactments
181. This clause introduces Schedule 3.
Schedule 3: Provisions supplementary to Part III
Part I: Modifications of enactments
182. Paragraphs 1 to 10 ensure that the various provisions relevant to testing, access, compensation and forfeiture in relation to items seized under specified legislation will also apply where material is seized under clause 51 and the search giving rise to the use of the new powers was under that specified legislation.
183. Paragraph 11 provides certain statutory restrictions on the disclosure of information contained in legislation to which Part III applies also apply where that information is obtained through the exercise of the new seizure powers in Part III in reliance on any of those underlying pieces of legislation.
Part II: Consequential amendments
184. This contains various consequential amendments to a range of relevant legislation. A number of them serve to amend PACE and other legislation to replace references to the words, "contained in a computer" with the words "stored in any electronic form". This provision is necessary to deal with developments in technology and the advent of handheld computers and other such devices. Further, the addition of the words "or from which it can be readily be produced in visible and legible form" to various pieces of legislation gives the police and others the power not only to obtain a printout of computer material but also obtain copies of it on disk.
Code of Practice and Crown Court Rules
185. Guidance on the powers in Part III and the procedures linked to their application will be included in an expanded version of the Code of Practice for Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons or Premises (Code B) issued under PACE. The procedure for applications to a Judge of the Crown Court will be set out in the Crown Court Rules.
Part IV: Police and Criminal Evidence and the Terrorism Act
186. The Bill amends section 24(2) of the Police and Criminal Evidence Act 1984 to include two new offences in the list of offences for which a power of summary arrest exists. At present, unless the general arrest conditions under section 25 of PACE apply, the police cannot take offenders into custody and question them. Questioning can only take place at the scene of the offence and the offenders may only be summoned to appear at a magistrates' court to answer the charge. The offences concerned are:
* kerb-crawling which is currently an offence under section 1 of the Sexual Offences Act 1985; and
* failure to stop after an accident where personal injury is caused. Section 170 of the Road Traffic Act 1988 places certain requirements on a driver involved in an accident within the categories specified to stop, report the accident and provide information or documents. It is an offence under section 170(4) to fail to comply with these requirements. Part IV would not provide a power of arrest in the case of a damage only accident, although the general arrest conditions may apply in that case.
Importation of indecent or obscene material
187. The aim of this part of this Bill is to make the customs offence of 'importing indecent and obscene material' a serious arrestable offence under Schedule 5 to the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989.
188. The effect of making this offence a serious arrestable offence will be to give customs officers greater powers in relation to their investigation of such offences. The proposal builds on the existing domestic legislation, as child pornography offences under section 1 of the Protection of Children Act 1978 are already listed in those Schedules as serious arrestable offences.
Detention and arrest
189. The Bill adds new sections 40A and 45A to the Police and Criminal Evidence Act 1984 (PACE) to allow for the use, in certain circumstances, of telephone reviews of detention, video reviews of detention and video links for other custody decisions where the review officer is at different station from the person detained. Section 40 of PACE provides for reviews of the detention of persons detained in police custody in connection with the investigation of an offence. The first review must take place no later than six hours after the detention was first authorised. The second review must take place no later than nine hours after the first and subsequent reviews must be at intervals of no longer than nine hours. In relation to those who have been arrested and charged, the responsibility for carrying out the reviews lies with the custody officer (section 40 (1) (a)).
190. Section 36 (3) of PACE provides that no officer may be appointed a custody officer unless he is of at least the rank of sergeant. Subsection 4 provides that an officer of any rank may perform the functions of a custody officer at a designated police station if a custody officer is not readily available to perform them.
191. In relation to those who have been arrested but not yet charged, the responsibility to undertake the review lies with an officer of at least inspector rank not directly involved in the investigation (section 40 (1)(b)).
192. An attempt was made to introduce reviews of detention by video link in the area of Kent Constabulary within the existing law. However, in a judicial review in November 1999 (R v Chief Constable of Kent ex parte Kent Police Federation Joint Branch Board and Another  2 Cr.App.R. 196) the Lord Chief Justice held that section 40 of PACE did not permit review by video link and that the practice of section 40 telephone reviews approved by note C:15C of the Codes of Practice to PACE was of dubious legality. The Lord Chief Justice held that it was implicit in Section 40 and explicit in section 37(5) read in accordance with section 40(8) that the detainee should be in the physical presence of the review officer.
193. The Bill allows for pre-charge reviews under Section 40 (1)(b) to be carried out both by video link, where the review officer is at a different police station to the detained person, and by telephone, but only where it is impracticable to carry out the review in person or by video link within the required time-scale. It is not envisaged that the duties of the review officer should be performed by video link as a matter of course. It is envisaged that a review by telephone might be used, for example, where a review officer is unable to travel to the police station to carry out a review because the road is flooded. The Bill also provides a regulation-making power to allow custody officers to make certain decisions about charging, detention and bail using video conferencing facilities where the custody officer is at a different police station to the detainee.
194. The Government proposes to pilot the use of video conferencing facilities for Section 40 reviews of detention and other custody decisions. The Bill provides for regulations to be drawn up specifying which police stations are to be piloted and, if so required, which functions should be piloted. The option of remote decision making for detainees in non-designated stations will only be available where the necessary technology and administrative arrangements are in place. Even in areas within the pilot scheme, the option will remain for an officer at the non-designated station to carry out the custody officer functions as in existing law. In practice, the decision as to who should carry out the functions is likely to be taken in consultation with the custody officer at the nearest designated police station
Authorisation for delay in notifying arrest
195. The Bill amends Section 56(2) (b) of PACE to provide for a reduction from superintendent to inspector of the rank of officer needed to authorise a delay in allowing an arrested person to notify someone of his arrest and detention.
Use of video links for proceedings for extending Terrorism Act detention
196. The Bill amends paragraph 33 of Schedule 8 to the Terrorism Act 2000 to enable judicial extensions of detention proceedings to be conducted by video link. Part III of Schedule 8 to the Terrorism Act 2000 makes provision for extensions of detention of terrorist suspects to be considered and authorised by a judicial authority. At present, such extensions are considered by the Secretary of State. The judicial authority will hear applications by the police for extensions of detention beyond the 48 hour period during which the police can detain an individual arrested under section 41 of the Terrorism Act. The maximum time a person may be held on judicial authority is seven days from the time of arrest or of detention under Schedule 7 if the person was being examined under this power initially.
Visual recording of interviews
197. The Bill will allow for the visual recording of interviews with suspects.
198. At present it is doubtful whether the law permits the video recording of the interview with a person suspected of a criminal offence to proceed where the suspect objects - unlike audio recording which can proceed even when the suspect objects. A number of police forces have been piloting video recording of interviews with the consent of the suspect. The Government proposes to evaluate the effectiveness of video taping in these pilot areas initially, but a change in law is necessary in order to proceed with the evaluation.
Codes of Practice
199. Codes of Practice are issued under PACE covering:
200. At the moment, any changes to these Codes have to be subject to full public consultation and a process of debate in each House of Parliament.
201. The Bill allows proposals for limited amendments to the Codes for trial purposes to be made subject to the negative resolution procedure. Such changes could be for fixed periods of up to two years and could relate to defined areas and classes of offences or offenders. Permanent amendments to the codes which would apply generally would still need to be made using the existing procedures and thus be subject to full consultation and the affirmative resolution procedure.
Fingerprints and DNA
202. The Bill amends those parts of PACE dealing with the taking, storage and retrieval of fingerprints, footprints and DNA, to take account of developments in a number of new technologies. It also addresses the need to reflect new practices and procedures. It makes provision for electronic capture and storage of fingerprints, and type approval of the equipment used. It further provides for officers of the level of inspector or above to give authorisation to the taking of fingerprints and non-intimate samples without consent and for the taking of intimate samples with consent.
203. In July 1999 the Home Office published "Proposals for Revising Legislative Measures on Fingerprints, Footprints and DNA samples" (This was published by Home Office Communication Directorate and is available on the Home Office website at http://www.homeoffice.gov.uk.). This consultation document formed the basis for some of the measures included in this Bill. The responses received represented a broad range of interests. The majority of the respondents welcomed the proposals which have now been taken forward in this Bill.
204. An additional measure has been included to allow all fingerprints and DNA samples lawfully taken from suspects during the course of an investigation to be retained and used for the purposes of prevention and detection of crime and the prosecution of offences. This arises from the decisions of the Court of Appeal (Criminal Division) in R v Weir and R v B (Attorney General's reference No 3/199) May 2000. These raised the issue of whether the law relating to the retention and use of DNA samples on acquittal should be changed. In these two cases compelling DNA evidence that linked one suspect to a rape and the other to a murder could not be used and neither could be convicted. This was because at the time the matches were made both defendants had either been acquitted or a decision made not to proceed with the offences for which the DNA profiles were taken. Currently section 64 of PACE specifies that where a person is not prosecuted or is acquitted of the offence the sample must be destroyed and the information derived from it can not be used. The subsequent decision of the House of Lords overturned the ruling of the Court of Appeal. The House of Lords ruled that where a DNA sample fell to be destroyed but had not been, although section 64 of PACE prohibited its use in the investigation of any other offence, it did not make evidence obtained as a failure to comply with that prohibition inadmissible, but left it to the discretion of the trial judge. The Bill removes the requirement of destruction and provides that fingerprints and samples lawfully taken on suspicion of involvement in an offence or under the Terrorism Act can be used in the investigation of other offences. This new measure will bring the provisions of PACE for dealing with fingerprint and DNA evidence in line with other forms of evidence.
205. The Bill also amends the Police and Criminal Evidence (NI) Order 1989 so that restrictions on the use and destruction of fingerprints and samples are consistent with the new provisions for England and Wales, as detailed above.
Authority for intimate searches
206. The Bill amends section 55(1) and (5) of PACE to provide for a reduction from superintendent to inspector of the rank of officer who is required to authorise an intimate search or to authorise an intimate search to be carried out by someone other than a suitably qualified person.
207. Section 62(9) provides that intimate samples other than urine samples or dental impressions may only be taken by a registered medical practitioner and that a dental impression may only be taken by a registered dentist.
208. The Bill amends that section so that registered nurses may also take samples which are currently required to be taken by a registered medical practitioner.
Power to apply 1984 Act Provisions
209. The Bill fills a gap in the powers available to officers of the Secretary of State for Trade and Industry when investigating criminal offences. It amends the Police and Criminal Evidence Act to give the Secretary of State the power to make an order applying the provisions of Schedule 1 to that Act so far as they relate to "special procedure" (e.g. material subject to confidentiality such as bank accounts) material for the purposes of investigations of "serious arrestable offences" (e.g. offences carrying a sentence of five years imprisonment or more such, as theft) by officers of the Secretary of State for Trade and Industry. At present, such officers have no statutory powers when carrying out criminal investigations and so are unable to gain access to material held in confidence such as bank accounts.
Execution of process in other domestic jurisdictions
210. The Bill fills a gap in the law relating to the execution in Scotland of search warrants issued or production orders made in England & Wales in respect of 'special procedure' and 'excluded' material as defined in the Police and Criminal Evidence Act 1984. It amends the Police and Criminal Evidence Act 1984 to apply section 4 of the Summary Jurisdiction (Process) Act 1881 to orders and warrants for special procedure and excluded material. The 1881 Act currently enables process issued by a court of summary jurisdiction in England & Wales to be endorsed for execution in Scotland and vice versa. However these arrangements do not apply to search warrants and production orders in respect of 'special procedure' material (e.g. bank details) or excluded material, since such warrants and orders can be issued and made only by a circuit judge, i.e. not by a court of summary jurisdiction. The Bill makes comparable provision for Northern Ireland.
Clause 72: Arrestable offences
211. This clause adds the offences of kerb crawling and failure to stop and report an accident (in which personal injury is caused) to the list of offences in section 24 (2) of the Police and Criminal Evidence Act 1984 for which a power of summary arrest exists. Making these offences arrestable enables the police to take offenders into custody and question them rather than having to summons them to appear at a magistrates' court to answer the charge.
Clause 73: Importation of indecent or obscene material
212. Section 170(2)(b) of the Customs and Excise Management Act 1979 makes it an offence knowingly to evade any prohibition or restriction for the time being in force. Section 42 of the Customs Consolidation Act 1876 prohibits the importation into the United Kingdom of indecent or obscene articles. Together these sections make it an offence to import or bring into the United Kingdom indecent or obscene articles. Existing legislation provides that this offence is one to which the summary arrest powers of the Police and Criminal Evidence Act 1989 and the Police and Criminal Evidence (Northern Ireland) Order 1989 apply. The effect of clause 73 will be to make this offence a serious arrestable offence in England and Wales and Northern Ireland by adding it to the list of such offences set out in Schedule 5 to the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989.
213. Making this offence a serious arrestable offence will, whilst retaining the existing powers of summary arrest, allow an officer of Customs and Excise to exercise greater powers than would be available in relation to the investigation of an offence which was not a serious arrestable offence, in relation to the investigation of that offence. It will allow applications to be made for access to certain material and for warrants to enter and search premises during the course of an investigation. It will also give officers of Customs and Excise greater powers in relation to the detention of a person who has been arrested for this offence.
Clause 74: Use of video and telephone links for decisions about detention
214. This clause inserts a new section 40A into PACE which allows for an officer of at least the rank of inspector to conduct a review of detention before charge, by telephone. Subsection (1) of section 40A prescribes the situations in which a telephone review is to be used: where it is not reasonably practicable for the review officer to be present at the police station where the person is held and where the review is not one which is authorised by regulations in section 45A to be carried out using video conferencing facilities, or where in the circumstances it is not reasonably practicable to use such facilities. The effect of this is that telephone reviews will be used in very limited circumstances.
215. Subsection (3) of section 40A alters some of the obligations of the review officer where he is not in the same police station as the detainee. PACE contains several references to functions which imply that the review officer and detainee should be in the same police station. For example, section 37(4) and (5), (duty to make a written record and written record to be made in the presence of person arrested) and sections 40 (12) to (14) (opportunity to make representations orally or in writing). Where the review officer is not in the same police station as the detainee, the obligation is to cause another officer to make a written record in the presence of the detainee.
216. Subsection (4) of section 40A authorises the means by which representations are to be made to the review officer. Subsection (4) (a) allows for the use of email or fax where those facilities exist and (4)(b) for use of the telephone.
217. Subsection (3) of clause 74 inserts a new section 45A after section 45 of PACE to enable the Secretary of State to make regulations to allow a police officer to perform certain functions where he is not present in the same police station as the arrested person but where he has access to the use of video conferencing facilities to communicate with persons in that station.
218. Section 30(2) of PACE sets out the normal rule that those arrested should be taken to a designated police station, that is one which is designated for the detention of arrested persons. Section 30(3) to (6) sets out the circumstances in which an arrested person may be taken to a non-designated police station for a maximum of six hours. For example, where it appears to a constable that he will be unable to take an arrested person to a designated police station without the arrested person injuring himself, the constable or some other person. Section 36(7) sets out how the functions of the custody officer should be carried out at a non-designated police station. The Bill provides that as an alternative to an officer at the non-designated police station having all the powers and duties of a custody officer, a custody officer at a designated police station should be able to carry out some of those functions by means of video conferencing facilities.
219. Subsections (2)(a) and (b) of new section 45A set out the functions as those of a custody officer under sections 37, 38 and 40 of PACE in relation to an arrested person who is taken to a non-designated police station; and the function of carrying out a pre charge review of detention under Section 40(1) (b) of PACE by an officer of at least the rank of inspector. Subsections (3) and (8) are regulation making powers enabling the regulations to specify how the facilities should be used and in which police stations. Subsection (4) provides that the regulations shall only authorise a custody officer at a designated police station to perform any of the functions in subsection (2) (a). Subsections (5) to (7) of section 45A make provision similar to subsections (3) and (4) of section 40A except that the oral representations may be made by video conferencing facilities.
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